Should employers be able to drug test employees?

Under the Health and Safety Act 2004 (Vic) an employer has a duty to provide and maintain a safe working environment, so far as is reasonably practicable.

Drug impairment within the workplace may put other employees at risk and compromise this obligation. Therefore, employers may feel the need introduce drug testing methods as a preventative measure, because they could be liable with penalties ranging from a fine to imprisonment.

It is perfectly legal for employers to conduct workplace drug testing, as drug testing falls within the guidelines of maintaining a safe working environment. But the issue is the regulation of such testing. As there is no clear regulation in place for workplace drug testing, countless issues arise.

How to test?

There is no shortage of testing methods. Employers have the choice of blood, urine, hair, and oral fluid analyses.

But whose doctor/medical worker will be used? Will the employer need to provide a doctor at work, or will the employee be required to attend their own doctor and provide their employer with the result?

Will the employer use their own personal observations of the employees as a means of detecting whether a person has been or is likely to be under the influence of drugs, or will they use a random selection method in order to not discriminate?

The legislation provides for reasonably practicable means of maintaining a safe working environment, but how frequently can an employer drug test before it is no longer reasonable to be doing so?

Privacy issues.

Testing could potentially be intrusive and embarrassing. If a urine sample needs to be taken, the employer may want the employee to be observed to prevent sample tampering. This method would likely be extremely uncomfortable to many.

The urine sample may also expose medical conditions that the employee may not want the employer to know about. Medical records are confidential to the individual and are not meant for the employer.

Although blood tests are not as intrusive as an observed urine test, some employees may not be comfortable undergoing such a process.

Positive result?

What constitutes a positive result actionable by the employer? Many prescription drugs contain narcotics and although misuse of these drugs can impair job performance, what happens if an employee is not impaired, but the result still shows that narcotics are present?

Similarly, cannabis can stay in the system for over four days and therefore can be detected even if it does not have a current impairment effect on the employee.

In the event of illicit substances being present, how does the employer deal with a positive result? The employer may potentially dismiss the employee immediately or refer them to counselling or even to criminal authorities.

If you are concerned about being drug tested within the workplace, it is important you obtain legal advice to help you understand your legal rights and obligations.

Please contact our employment law department if you would like to discuss your particular circumstances on 9870 9870

Cyber Crime

As the internet has grown over the past few decades, so has our relationship with it.  Nowadays, most Australians are using the web to do their banking, to pay bills, to buy and sell goods and services and to stay connected. While the digital age has simplified many tasks, it has also created opportunities for cyber crime.

Cyber crime, including fraudulent transactions, has become one of the most common crimes affecting Australians, costing as much as $1.2 billion, annually. Technical attacks can occur to both client and professional service providers, such as banks and corporations, where email accounts are hacked by fraudsters who send requests for funds to be transferred into fraudulent bank accounts. Cybercrime has also evolved to the point of social engineering and tricking people into opening emails or clicking links that release malware that locks computer systems until ransom is received.

The Government is committed to launching strategies to secure prosperity to Australians in our connected world by establishing an initiative called “Five themes of action for cyber security by 2020”. This initiative includes building strong cyber defences and strengthening cyber security growth and innovation.  However, as much of the national digital infrastructure is owned by the private sector, securing Australia’s cyberspace must be a shared responsibility. It is important that businesses and the research communities work with Governments to improve cyber defences and to create solutions.

It is imperative that law firms are part of this conversation.

Law firms hold information about clients that may be valuable to cyber-criminals who can on-sell client personal or transactional information, once they have access to the firm’s computer system. Having strategies and practice management processes to raise awareness of and boost a firm’s cyber security is necessary for protecting a firm’s clients and reputation.

Clients are recommended to remain aware of the significance of cyber security and to be proactive rather than relying on business interfaces and protocols. The following are reminders of how to be smart with your data and thereby protect yourself against online scams:

  • Be aware that scams and fraudsters exist;
  • Keep your financial and email accounts secure, by utilising strong case sensitive passwords and refraining from allowing remote access to your devices;
  • Refrain from sharing personal information on social media and check your privacy settings;
  • Verify with whom you are dealing: confirm the legitimacy of their business, source and account security;
  • Refrain from opening links and attachments in suspicious emails from an unrecognisable source;
  • Be cautious of online requests for your private details or unusual payments;
  • Be careful when shopping online and use secure payment methods; and
  • Confirm wiring instructions verbally.

This last suggestion, of confirming transfer instructions verbally, is probably the simplest and most effective way of avoiding individual transactional frauds, at the very least.

Family Violence Intervention Orders

What is a family violence intervention order?

A family violence intervention order is a court order that protects victims who are affected by an act of family violence. The person the intervention order will protect is called the affected family member. The person the intervention order is made against is called the respondent.

What is family violence?

The Family Violence Protection Act 2008 (Victoria) (“The Act”) provides that family violence occurs when a person engages in abusive behaviour towards a family member. It involves behaviour that controls or dominates a person and causes them to fear for their own safety or wellbeing or that of another person.

Under the Act, behaviour constituting family violence includes:

  • physical or sexual abuse;
  • emotional or psychological abuse;
  • economic abuse;
  • threats;
  • coercion; and
  • any other behaviour that controls or dominates a family member.

Family violence also includes behaviour that exposes a child to any of the behaviours outlined above.

Some examples of family violence are slapping, hitting, punching, sexual assault, verbal threats, derogatory taunts, harassments, withholding necessary financial support, and deliberately isolating someone from their friends and family.

Who is a family member?

Under the Act, family members are:

  • spouses, de facto or domestic partners – whether there is a sexual relationship or not;
  • parents and children, including children of an intimate partner;
  • relatives by birth, marriage or adoption; and
  • persons treated as family – such as guardians or carers.

Who can apply for a family violence intervention order?

An application for a family violence intervention order may be made by the following persons:

  • a police officer;
  • an affected family member;
  • if the affected family member is an adult, any other person with the consent of the affected family member;
  • if the affected family member is a child, the parent of the child, or any other person with the written consent of a parent of the child, or with leave of the court;
  • if the affected family member has a guardian, the guardian or any other person, with the leave of the court.

Furthermore, a child who is an affected family member, may make an application provided they are 14 years or older and have leave of the court.

Interim orders

The court may make an interim order if a person has applied to the court for a family violence intervention order and the court is satisfied that an interim order is necessary, on the balance of probabilities, to ensure:

  • the safety of the affected family member; or
  • to preserve any property of the affected family member; or
  • to protect an affected family member who is a child who has been subjected to family violence committed by the respondent.

The court may also make an interim order if the parties to the proceedings have consented to, or do not oppose, the making of an interim order.

Granting of family violence protection order

The court has the power and discretion to make a final order if the court is satisfied on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.

While an intervention order is technically a civil remedy and not a criminal charge, if a person breaches an intervention order, the offender may face criminal charges involving serious repercussions.

Get legal advice

If you are a victim of family violence or an application for an intervention order has been made against you, it is important you obtain legal advice to help you understand your legal rights and obligations.

Please contact our family law or litigation departments if you would like to discuss your particular circumstances on 9870 9870.

Bitcoin, Hidden Investments and Family Law

Since its advent in 2009, Bitcoin has provided an alternative currency that is difficult to trace and unregulated by banks or government bodies. Cryptocurrencies provide a new challenge to family law with major concerns raised by lawyers in relation to disclosure obligations.

The advent of cryptocurrencies brings about similar challenges to cash, which is difficult to locate unless you know where to look. The virtual dimension of such currencies only tends to exacerbate the issue. Consider the online ‘wallet’ (like a bank account) for Bitcoin users who have public ‘keys’ (to receive funds) and private ‘keys’ (passwords needed to transfer funds). These keys do not hold or disclose any personal information about the holder of the wallet, let alone where it is stored or may be accessed.

Family Law Proceedings and Virtual Assets

Parties to family law proceedings are obliged to provide full and frank disclosure of their financial affairs in the Federal Circuit Court (Regulation 24.03) and in the Family Court (Rule 13.04). Thus, evading proper disclosure of virtual currencies is clearly being in breach of the disclosure obligations.

This is not just a question of ethics. The family courts have power to dismiss a person’s case, order costs against that person or imprison them for contempt of court if disclosure is held not to have been made. Even if virtual assets cannot be located, evidence indicating that assets are being siphoned off can be used to make an adverse inference against the offending party, with orders made to adjust the property settlement accordingly.

Parties that suspect their former spouse of hiding virtual assets may seek an Anton Piller Order which involves ordering the seizure and search of computers or other electronic devices in an attempt to locate the virtual assets. This order should be sought in conjunction with a freezing order to prevent the other party from electronically moving their assets elsewhere. A subpoena may also be filed against a host platform service or a business that the other party has invested in to obtain further information. Such actions need to be balanced by the size of the asset pool, the costs involved and the chances of recovery.

How can Hutchinson Legal help?

If you or someone you know is going through a separation, we strongly encourage you to consult a family lawyer sooner rather than later. For further information, please contact Joshua Davis of our family law team for expert advice and assistance.

Parenthood, Sperm Donation and When Things Go Wrong

When things are going well, no one wants to think about what to do when something goes wrong.

This year the High Court will hear an appeal questioning the legal parentage of a child conceived by sperm donation. The case first arose when the birth Mother sought to relocate to New Zealand with the child and her de facto partner without the biological Father’s consent. The Mother has been seeking to relocate since 2014 without success.

In 2006, the Father and the Mother, who had been close friends for 25 years, conceived a child using “informal artificial insemination.” The Father stated that he desired to co-parent the child, although the Mother disagrees, saying that she wanted to raise the child with her new partner, “Margaret”, soon after conception. The Court will need to consider the definition of “parent” and what factors need to be weighed in answering that question.

In recent years, there have been many changes in the law, where a non-biological female partner in a same-sex relationship can be legally recognised as a parent. This has further implications for women in same-sex relationships who can both legally be recognised as parents when a child is conceived through IVF or self-insemination.

In the High Court case, the two children, the oldest being the subject of the appeal, refer to the biological father as “daddy”, the biological mother as “Mummy” and the Mother’s partner as “Margaret”. The child lives with her two Mums and regularly spends time with her father and his male partner. Here, the Family Law Act allows parents and any other persons “concerned with the care, welfare and development of the child” to apply for parenting orders, regardless of whether they are classed as parents or not.

A “pre-conception” or “sperm donor” agreement can be very helpful to set out parties’ intentions for the child and the web of relationships that will ensue before a child is conceived. Even if the Family Law Act requires such an agreement to be set aside pursuant to the “best interests of the child”, it can be used as evidence of the parties’ intentions in the event of future disagreements or litigation. Ideally, such an agreement would be filed with the Court as parenting orders while things are still going well, before something goes wrong.

Practically, people are rarely so proactive in such matters. Considering the implications for your relationship with your child and the potential Child Support liabilities, obtaining legal advice before embarking on such an adventure is highly recommended. If you have a query from this article, the family law team at Hutchinson Legal is willing to assist.

Combustible Cladding

Recent tragedies such as the Lacrosse Docklands fire and the fire at Grenfell Tower in London, the latter of which resulted in the deaths of 72 people, have brought about increased scrutiny of the risks associated with combustible cladding.

The Victorian Government is conducting a Statewide Cladding Audit. This audit involves inspection of apartment buildings to determine if combustible cladding (such as expanded polystyrene or aluminium composite panels with a polyethelene core) was used in its construction.

Apartment buildings or hotels of three or more storeys, or hospitals, schools and aged care facilities of two or more storeys, that were built after March 1997, will be inspected as part of the audit.

The assessment can result in the Council requiring the owners of the building to take immediate steps to make the building safer. This can include installing smoke alarms, removing ignition sources such as barbeques and clearing fire exits.

The Council can also issue a Building Order requiring replacement of the combustible cladding with a safer material.

To assist with meeting the cost of these works, which can be substantial, building owners can apply for a Cladding Rectification Agreement. This is a three-way arrangement between owners, lenders and the Council to fund the works and will be paid by owners as a charge on the Council rates notice.

If you currently own an apartment that may be affected by the audit, you may wish to ask your Owners Corporation manager if they know what cladding is used on the building and if an audit is planned in the near future.

If you are intending to purchase an apartment, the Victorian Building Authority has a checklist on their website of the recommend steps to take before purchasing: http://www.vba.vic.gov.au/cladding.

Banking Royal Commission

Has a bank, or finance company, or superannuation fund cost you money or denied your claim?

Do you want to get your money back or have your claim reinstated?

If you answered yes to either of these two questions please contact Hutchinson Legal on 9870 9870 or email us at office@hutchinsonlegal.com.au to find out how we may be able to help you.

Many banks, finance companies and superannuation funds have acted improperly according to the Banking Royal Commission which released its findings Monday 4 February 2019.

Examples of behaviour that may entitle you to receive compensation include:

  • being sold inappropriate credit card insurance
  • being charged for services you didn’t receive
  • being sold life insurance by a bank or superannuation fund
  • having a bank or finance company act on false documents (e.g. car loan documents)
  • having insurance claims rejected

You may also know of someone who has suffered a loss or who has a deceased spouse who was charged for services after they had died.

Hutchinson Legal are reviewing options for class actions against banks and finance companies that have acted improperly and caused losses to Australians. Please contact us on 9870 9870 or email us at office@hutchinsonlegal.com.au to find out if you may be able to recover such losses or receive compensation.

Note: The official name of Banking Royal Commission is ‘The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry’, and is also known as the Hayne Royal Commission.

Aged Home Care – Better care or larger bureaucracy

The new Commonwealth funded Aged Care Quality and Safety Commission commenced operation on 1 January 2019.

The Commission combines the Australian Aged Care Quality Agency and the Aged Care Complaints Commissioner. The new Commission will accredit, assess and monitor aged care services subsidised by the Australian Government. It will resolve complaints about these services and aims to build confidence and trust in aged care, give greater voice to consumer complaints, support aged care providers to comply with quality standards, and promote best practice service provision.

Madelaine Pelser leads the Eldercare Legal Department at Hutchinson Legal in Ringwood, and is concerned there may be a bureaucratic overreaction caused by the publicity given to rogue operators in the aged care sector. Some operators are already providing excellent and respectful care and Madelaine has expressed concern that operators may be required to divert resources from providing the care our elderly need, to filling in paperwork and documenting every small and sometimes inconsequential event that occurs in an Aged Care Facility.

Care for our elderly should not be compromised, whether it be by a rogue operator, or by overzealous public servants. It is to be hoped the new Commission focuses their efforts on the operators who are either unable or unwilling to lift their standards and provide the care our elderly deserve.

A Royal Commission into aged care was established on 8 October 2018 and the Commissioners are required to provide an interim report by 31 October 2019, and a final report by 30 April 2020. Grant Hutchinson, serving as director of an Aged Care Facility, notes the Royal Commission will be placing webcasts of their hearings online (https://agedcare.royalcommission.gov.au/hearings/Pages/Webcast.aspx) and has watched the opening of the Royal Commission held on 18 January 2019. He also expects to personally attend the hearings conducted by the Royal Commission into Aged Care Quality and Safety in Melbourne.

Have you registered your business name?

Since 2012, if you operate your business under a different name than your own name or your company’s name, you must have a registered business name.

Previous to this date, trading names were able to be used. These are being phased out, with trading names no longer being valid from 2023.

A business name must be registered with ASIC and must be renewed every one year or every three years depending on the period of registration you have chosen.

It is an offence to operate a business under a different name without a registered business name. This can attract a penalty of up to $6,300.

There may also be difficulties involved in selling your business. In order for the sale to be GST-free as a going concern, you must transfer all things necessary for a purchaser to continue the business. A trading name cannot be transferred. You will have to register a business name before transferring it to the purchaser, which can delay settlement. If a business name is not transferred to the purchaser, the sale may attract GST.

If you purchased or started your business prior to 2012, it is a good idea to check whether you hold a registered business name using the Federal Government’s ABN Lookup website.

If you are selling or buying a business or require advice regarding any business legal issues including commercial agreements or business structuring, please contact our Commercial Law team on 03 9870 9870.

We mourn the passing of Mr Henry S. Dixon

On the morning of Friday 19 October, the mentor and grandfather of Hutchinson Legal died.

We express our sympathy and condolences to the family of Henry Summerville Dixon and to the many clients who knew and loved him.

A Service of Thanksgiving and internment of ashes will be held on Saturday 3 November 2018 at 11.30am at St Michael and All Angels Anglican Church (1331 Mount Dandenong Tourist Rd, Kalorama) with Vicar Andrew Smith, followed by a light lunch at CWA Farndons Hall (Farndons Rd, Mt Dandenong).

A tribute to Mr Dixon was published in the 31 October 2018 edition of Maroondah Leader. Please click on the following link if you would like to read it: http://leader.smedia.com.au/maroondah/

Below are some thoughts and memories from those who knew Mr Dixon:

“…he was always great to us. They were funny times, but at all times his advice was second to none.” – M. Webster

“Remembering with much happiness mixed with sadness at his passing my boss and mentor for over 20 years. An icon of Ringwood and Mt Dandenong during his lifetime. May he rest in peace with those twinkling eyes.” – S. Halliwell (formerly Davies)